Symposium: 1 First Street, NE, Punxsutawney, PA

Posted Fri, February 8th, 2019 10:09 am by Tyler Green

Tyler Green is the solicitor general of Utah.

My last contribution to a SCOTUSblog symposium on political gerrymandering used homemade bad theater to depict how a Supreme Court decision setting a standard for political-gerrymandering claims would change life for state legislators and their attorneys. The court dodged this issue in Gill v. Whitford. But the issue has returned this term in Rucho v. Common Cause and Lamone v. Benisek. These events evoke a seasonally appropriate, classic film — Groundhog Day — as a metaphor for how setting a political-gerrymandering standard would change life for the court itself.

Many readers are probably familiar with the iconic film’s plot. (If you haven’t seen the movie, this is your spoiler alert.) Bill Murray stars as Pittsburgh-based TV weatherman Phil Connors. His station assigns him to report live from Punxsutawney on February 2 as the town’s leaders reveal their famous groundhog’s forecast about when spring will arrive. He does so begrudgingly, and his efforts to skip town ASAP afterward go nowhere; a blizzard closes the roads, forcing him to stay another night.

He awakens the next morning, however, to find it’s somehow February 2 again. This cycle repeats itself over and over, leaving Phil trapped in Punxsutawney reliving the same day. It’s not clear from the film how many consecutive Groundhog Days Phil spends in Punxsutawney. Harold Ramos, the film’s director, reportedly once said that Phil was trapped in Groundhog Day for 10 years; other internet guesses put the number closer to 34 years.

Whatever the time span, one key to this metaphor lies in Phil’s evolving reaction to his predicament. His initial confusion turns to glee when he realizes his actions no longer have lasting consequences: He ends the day in jail after a car chase with police, yet still wakes up the next morning at his bed and breakfast. But eventually despair sets in; seeing no way out, he drives off a cliff, electrocutes himself, steps in front of a truck, and jumps from a tall building. Each morning after he dies, cue his 6:00 a.m. wake-up.

Phil eventually makes it to February 3, but not before shedding his narcissism. By day’s end, he has mastered a routine of good works — catching a boy who falls from a tree, changing an elderly woman’s flat tire, performing the Heimlich maneuver on the town’s mayor. What matters, we learn, is that Phil used his time to become someone new.

What can Groundhog Day teach us — or warn us — about political-gerrymandering cases? One parallel is obvious. Like Phil’s February 2 in Punxsutawney, these cases keep recurring. In the Supreme Court’s words, Gill v. Whitford marked the fifth time since 1973 that the court has been “asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines.” Worse yet, the court’s four prior “attempts at an answer have left few clear landmarks for addressing the question.”

That’s not for lack of effort. Gill summarized several thoughtful opinions prior justices have penned trying to persuade their colleagues toward a specific approach. Not one got a majority vote. After nearly 50 years, the Supreme Court’s precedent still looks like early-movie Phil, floundering and rudderless. That alone suggests that it might be time to try a different exit.

But that analogy may be less interesting than what’s to come if the court adopts a standard for partisan-gerrymandering claims. If that happens, Phil’s 10 (or 34) years in Punxsutawney will seem fleeting by comparison; the court will never see February 3. Rucho and Lamone, like Gill before them, are appeals from judgments by three-judge district courts, as mandated by law. Unless Congress changes the court’s appellate-jurisdiction statutes, setting a standard for partisan-gerrymandering claims in Rucho or Lamone is effectively inviting elected state officials from every minority party in all 50 states — or, depending on the standard, any voter in those parties — to file at least one lawsuit at least once every 10 years for as long as the country exists.

And it’s hard to believe that elected state officials and voters will refuse that invitation. Parties, elected officials and voters rightly have strong views about how district lines should be drawn. When their views don’t carry the day, the promise of a guaranteed route to potential vindication from the nation’s highest court will prove too alluring to resist.

What is more, any new partisan-gerrymandering standard might apply beyond districts for the state legislature or the U.S. House of Representatives. To be sure, the plaintiffs in Gill, Rucho and Lamone have limited their constitutional challenges to boundaries for those types of districts. But nearly all the plaintiffs’ theories about why political gerrymandering is unconstitutional appear to apply equally to smaller legislative districts — think county or city councils.

Whatever the initial thrill at finally solving the political-gerrymandering riddle, giving every voter in the country upset by any legislative district’s boundaries a direct route to Supreme Court review would foment a staggering number of potential cases. When that tsunami inevitably hits, the court’s members might be excused for channeling their inner Phil and looking for a plugged-in toaster to drop into the bathtub.

The metaphor arguably breaks down, however, at the story’s end. Phil lived to see February 3 because of what he’d become. What would the Supreme Court become in a world with a cognizable political-gerrymandering standard? The final arbiter of whether every American legislative official’s district boundaries typify fair politics.

That’s no recipe for redemption. Rather, as Justice Sandra Day O’Connor said in Davis v. Bandemer, it would be “calamitous for the federal courts, for the States, and for our two-party system.” She knew firsthand from her service as an Arizona state senator that redistricting — “the legislative business of apportionment” — is “fundamentally a political affair.” The public has not always looked kindly on Supreme Court cases that can be viewed as picking political winners and losers. See, e.g., Bush v. Gore. There’s no reason to believe the public’s reaction would be any different if the court “inject[ed]” itself “into the most heated partisan issues” touching redistricting in every state, county and city legislative body.

The solution to the Supreme Court’s Groundhog Day conundrum isn’t for it to mimic Phil Connors and become something new — the last stop for Americans disgruntled by political line-drawing. Instead, it’s to leave political-districting questions “to the legislative branch as the Framers of the Constitution unquestionably intended,” just as O’Connor recognized. By refusing to wield “the judicial power” to make “such fundamental choices about how this Nation is to be governed,” the court can avoid the never-ending loop of cases requiring it to decide whether the boundaries for every state, county or city legislative district are too political. In other words: To safeguard its own institutional interests, the court should stay out of Punxsutawney in the first place.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.